Electrical Workers Local 3 (Unitec Elevator Co.)

National Labor Relations Board - Board Decisions

Aug 15, 2008

352 N.L.R.B. 1047 (N.L.R.B. 2008)

ELECTRICAL WORKERS LOCAL 3 (UNITEC ELEVATOR CO.)
352 NLRB No. 124
1047
Local 3, International Brotherhood of Electrical
Workers, AFL–CIO and Alliance Elevator
Company, Inc d/b/a Unitec Elevator Company
and Local 1, International Union of Elevator
Constructors of New York and New Jersey.
Case 29–CD–617
August 15, 2008
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The Elevator Industries Association (EIA) filed a charge
on May 27, 2008,1 alleging that the Respondent, Local 3,
International Brotherhood of Electrical Workers, AFL–
CIO (Local 3), violated Section 8(b)(4)(D) of the Act by
threatening to engage in proscribed activity with an ob-
ject of forcing Unitec Elevator Company (the Employer),
a member of the EIA, not to reassign certain work from
employees represented by Local 3 to employees repre-
sented by the International Union of Elevator Construc-
tors of New York and New Jersey, Local 1 (Local 1).
The hearing was held on June 17 and 18 before Hearing
Officer Henry J. Powell. Thereafter, the EIA, the Em-
ployer, and Local 1 filed posthearing briefs.2
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, the Board makes the follow-
ing findings.3
I. JURISDICTION
The Employer is a Delaware corporation with its prin-
cipal place of business in Long Island City, New York.
During the past year, the Employer provided services
valued in excess of $50,000 directly to entities located
outside the State of New York. We find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.4 The parties stipulated,

1 Unless otherwise indicated, all dates refer to 2008.
2 In lieu of filing a posthearing brief, Local 3 made an oral argument
at the end of the hearing.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
4 The EIA, the Employer, and Local 3 stipulated that the Employer
met the Board’s jurisdictional standards. Local 1 would not join the
stipulation but later agreed that the Employer met the jurisdictional
standards.
and we find, that Local 3 and Local 1 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a wholly-owned subsidiary of United
Technologies Corporation. The Employer is engaged in
the business of maintenance, modernization, installation,
and repair of elevators in existing buildings. As a mem-
ber of the EIA, the Employer is party to a collective-
bargaining agreement with Local 3, which represents its
employees. The Employer does not have a collective-
bargaining agreement with Local 1.
Since 2000, the Employer has maintained the 60 eleva-
tors at Lefrak City in Queens, New York, a residential
apartment complex of 20 identical high-rise buildings,
each with three elevators. In early 2008, the Employer
was awarded the contract to replace elevator cars and
motor works, and install a safety monitoring system in all
60 elevators.
The Employer has about 120 employees, represented
by Local 3, who perform elevator work. Of the 120,
about 50 specialize in modernization projects, and that
group was assigned to the Lefrak City project. Work
commenced in April, with four senior modernization
employees tasked to remove an existing elevator and to
develop a prototype to replace the remaining elevators.
Once developed, the four employees would then work
with 10 modernization teams (each consisting of two
employees) to replace the balance of the Lefrak City ele-
vators. The project entails replacing 2–3 elevators per
month over the next 2 years.
Local 1 and the Elevator Manufacturer’s Association
of New York (EMANY) are parties to a collective-
bargaining agreement that covers new construction and
modernization work in existing buildings. The agreement
incorporates the New York Plan for Settlement of Juris-
dictional Disputes (the New York Plan), which estab-
lishes procedures for resolving jurisdictional disputes
involving union members of the Building and Construc-
tion Trades Council (BTC) and employer members of the
Building Trades Employer Association of New York
(BTEA).
The EIA and the Employer are not members of the
BTEA or EMANY and are not parties to the New York
Plan. Otis Elevator Company, another subsidiary of
United Technologies Corporation, is a party to the
EMANY contract and the New York Plan.
In February, Local 1 initiated a jurisdictional dispute
proceeding under the New York Plan seeking assignment
of work on the Lefrak City project to employees it repre-
sents. Local 1 and Local 3 participated in the subsequent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1048
arbitration hearing.5 The Employer did not participate.
On February 26, an arbitration panel issued a decision
awarding the construction and modernization work at
Lefrak City to Local 1. On March 11, Local 1 advised the
Employer that the arbitration panel found “that the work
involved in the construction or modernization of approxi-
mately sixty (60) elevators . . . [at] Lefrak City is work
which belongs to, and should be performed by, employees
represented by [Local 1]. Employees represented by [Lo-
cal 3] are not permitted to perform the construction and
modernization [work] . . . .”
At a meeting in February, Local 3’s business manager,
Robert Olenick, told the Employer’s modernization man-
ager, Michael Scotko, that Local 1 was going to claim the
Lefrak City work and might “file for arbitration.” Olenick
also told Scotko: “[d]o not think about giving the work to
Local 1. This is our work, you’re not going to take it
away. If you try to give it away, they’ll [sic] be repercus-
sions.”
On May 21, Local 3 Shop Steward Giulio Flaim sepa-
rately told Scotko and Dino Carbone, the Employer’s presi-
dent, that if the Employer decided to give the Lefrak City
work to Local 1, Local 3 would strike and picket the Em-
ployer. About a week later, Scotko received two letters
signed by a number of the Employer’s Local 3-represented
employees. The letters threatened that the employees would
strike if the Employer gave the Lefrak City work to Lo-
cal 1. The EIA then filed its charge with the Board in
this proceeding.6
B. Work in Dispute
The notice of hearing described the work in dispute as
that “work being performed by employees of the Em-
ployer, in connection with modernizing existing eleva-
tors at Lefrak City, a multibuilding residential housing
complex located in Corona, Queens, New York, specifi-
cally, upgrading, replacing, and/or installing equipment
and component parts in existing elevators to meet current
code compliance.”

5 Local 1 and Local 3 are members of BTC. Local 3 contends that
Local 3 has different divisions and that only its construction division is
a party to the New York Plan. Local 3’s maintenance division, which
represents the employees of the Employer, is not a party to the New
York Plan. Local 3 asserted that it participated in the arbitration hear-
ing to inform the arbitration panel that it did not have jurisdiction to
decide this dispute because the Employer was not bound by the New
York Plan.
6 On May 15, the BTEA, on behalf of the New York Plan, filed an
action in the United States District Court for the Southern District of
New York to enforce the arbitration panel award. The court stayed the
proceedings until August 2008 so that the NLRB could have “an oppor-
tunity to address the issues presented in this action.” Building Trades
Employers’ Assn. v. Marchell, No. 08 Civ. 4564 (DLC), 2008 WL
2421634, *3 (S.D.N.Y., June 13, 2008).
The EIA, the Employer, and Local 3 stipulated to this
description of the work in dispute. Local 1 disagreed
with describing the work as “modernizing” and “upgrad-
ing” because the work entails, for the most part, install-
ing entirely new equipment and, therefore, amounts to
constructing a new elevator system.
According to the description of the work in dispute,
both “replacing” and “installing” equipment are in-
volved. The record shows that the new equipment will
be installed into the existing elevator shafts and that the
work does not require constructing any new entrances or
new elevator shafts. Although the work largely involves
installing new equipment, we find that the work in dis-
pute is fairly described as “modernizing.” Elevator Con-
structors Local 1 (Elevator Industries Assn.), 229 NLRB
1200, 1201 (1977) (describing the disputed work as
“modernization” of elevators that “entails the replace-
ment of virtually all component parts of the elevators”).
C. Contentions of the Parties
The EIA, the Employer, and Local 3 contend that this
Section 10(k) dispute is properly before the Board for
determination. On the merits of the dispute, the EIA and
Employer assert that the factors of certification and col-
lective-bargaining agreements, employer current assign-
ment and preference, past practice, area practice, relative
skills and training, and economy and efficiency of opera-
tions favor awarding the disputed work to the employees
represented by Local 3. They also rely on Elevator Con-
structors Local 1, supra, awarding similar elevator mod-
ernization work to employees represented by Local 3
over those represented by Local 1.
Local 1 does not agree that this jurisdictional dispute is
properly before the Board for determination under Sec-
tion 10(k). Local 1 contends that all the parties are bound
to an agreed-upon method for voluntary adjustment of
the dispute, the New York Plan, because the Employer is
an “alter ego” of Otis Elevator Company. Local 1 also
asserts that Local 3’s threat to strike the Employer is a
“sham” because Local 3 is subject to a no-strike clause
that makes it unlikely that Local 3 had any intention of
following through with its threat to strike or picket. Lo-
cal 1 further contends that the timing of the specific
strike threats, coming well after the arbitration award—
and only after the BTEA sued to enforce that award—
shows that they were made to “manufacture” a jurisdic-
tional dispute to circumvent the arbitration award.
On the merits of the dispute, Local 1 contends that,
with the exception of current assignment and employer
preference, all factors favor awarding the disputed work
to Local 1-represented employees, particularly area and
industry practice. Finally, Local 1 argues that Elevator
Constructors Local 1, supra, is not determinative.
ELECTRICAL WORKERS LOCAL 3 (UNITEC ELEVATOR CO.) 1049
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that there are competing claims
to the disputed work, and that a party has used proscribed
means to enforce its claim to the work in dispute. Addi-
tionally, there must be a finding that the parties have not
agreed on a method for the voluntary adjustment of the
dispute. See, e.g., Operating Engineers Local 150 (R&D
Thiel), 345 NLRB 1137, 1139 (2005). We find that these
requirements have been met.
1. Competing claims for work
The parties do not deny that there are competing
claims for the work in dispute. Local 3 has at all times
claimed the work for the employees it represents, and
these employees have been performing the work. Local 1
has claimed the work for employees it represents both in
this case and in proceedings under the New York Plan.
2. Use of proscribed means
The statements by Local 3 officials in mid-February
and May, supported by the employees’ letters in May,
constitute threats to take proscribed coercive action in
furtherance of a claim to the work in dispute. Although
Local 1 urges the Board to find that these threats were a
sham, there is no evidence that they were not made seri-
ously or that Local 3 colluded with the Employer in this
matter. Lancaster Typographical Union 70 (C.J.S. Lan-
caster), 325 NLRB 449, 450–451 (1998) (“It is well es-
tablished that as long as a Union’s statement, on its face,
constitutes a threat to take proscribed action, the Board
will find reasonable cause to believe that the statute has
been violated, in the absence of affirmative evidence that
the threat was a sham or was the product of collusion.”).
Furthermore, the Board has rejected the argument that a
strike threat was a sham simply because it would have
violated a no-strike clause. See Bricklayers (Cretex Con-
struction Services), 343 NLRB 1030, 1032 fn. 5 (2004).
3. No voluntary method for adjustment of dispute
The Employer is not signatory to any contract binding
it to the New York Plan. Nonetheless, Local 1 contends
that the Employer is subject to that agreement because of
an alleged “alter ego” relationship with Otis Elevator
Company, an entity admittedly party to the New York
Plan.
The Board will find alter-ego status when two employ-
ers have “substantially identical” ownership, manage-
ment, business purpose, nature of operations, equipment,
customers, and supervision. Crawford Door Sales, 226
NLRB 1144 (1976). Local 1’s evidence, however,
shows, at best, only that Otis Elevator, like the Em-
ployer, is a wholly-owned subsidiary of United Tech-
nologies Corporation. Common ownership alone is insuf-
ficient to establish alter-ego status. Electrical Workers
Local 3 (Telecom Plus), 286 NLRB 235, 235 (1987),
enfd. 861 F.2d 44 (2d Cir. 1988). Therefore, we find that
the Employer is not an alter ego of Otis Elevator and is
not bound by the terms of the New York Plan. Conse-
quently, there is no agreed-upon method for the volun-
tary adjustment of this dispute.
Based on the foregoing, we find that there are compet-
ing claims for the disputed work, that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated, and that there is no agreed-upon method for the
voluntary adjustment of the dispute. We accordingly find
that the dispute is properly before the Board for determi-
nation.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 577 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J. A.
Jones Construction), 135 NLRB 1402 (1962).
We have considered the following factors, which we
find relevant, and, for the reasons set forth more fully
below, we conclude that the Employer’s employees rep-
resented by Local 3 are entitled to perform the work in
dispute.
1. Board certifications and collective-bargaining
agreements
Following a 1999 representation election in which both
Local 3 and Local 1 participated, the Board certified Lo-
cal 3 as the exclusive collective-bargaining representa-
tive for a unit that includes classifications of employees
performing the work in dispute. One of the signatory
employers was Knudson Elevator Corp., which later be-
came the Employer.
As a member of the EIA, the Employer has a collective-
bargaining agreement that recognizes Local 3 as the certi-
fied representative of its employees. The collective-
bargaining agreement covers all of the Employer’s em-
ployees engaged in elevator maintenance and moderniza-
tion work. Article XVII, the management-rights clause,
provides that the Employer may direct employees to per-
form “all work involving the . . . modernization . . . and . . .
installation of elevators . . . (with the exception of a com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1050
pletely new elevator . . . installation using new equipment
or used equipment not part of the existing installation) in
existing or modified elevator shafts . . . .”
In addition, the duties of the “Grade A Elevator Repair
and Modernization Mechanic” include performing work
similar to that in dispute:
Repair, modernize and install elevators, where skilled
mechanical work (even to close tolerances) and intri-
cate control circuits are involved. Plan and execute dif-
ficult mechanical and electrical repairs and installations
such as the renewal of worms and gears, the wiring,
connecting and testing of controllers and other auxiliary
electrical equipment, machine babbitting, thrust renew-
als, motor and controller removal and replacement, and
modernization.
Local 1 is not certified to represent any of the Em-
ployer’s employees and does not have a collective-
bargaining relationship with the Employer.
Based on the foregoing, the factors of certification and
collective-bargaining agreements favor awarding the
work in dispute to employees represented by Local 3.
2. Employer preference, current assignment,
and past practice
The Employer has always used Local 3-represented
employees to perform elevator modernization work.
Consistent with this past practice, the Employer assigned
the Lefrak City work to these employees and prefers that
they continue to perform this work. Thus, we find that
the factors of employer preference, current assignment,
and past practice favor assigning the work to employees
represented by Local 3.
3. Industry and area practice
We find that the record does not establish a clear or
consistent area or industry practice with regard to the
work in dispute. At best, the record shows that employ-
ees represented by both unions have performed such
work. Accordingly, we find that this factor does not fa-
vor an award of the work in dispute to employees repre-
sented by either union.
4. Prior Board cases
The EIA, the Employer, and Local 3 rely on Elevator
Constructors Local 1 (Elevator Industries Assn.), 229
NLRB 1200 (1977), in support of their contention that
the elevator modernization should be awarded to Local
3-represented employees. In that case, the disputed work
involved modernizing nine elevators at the Plaza Hotel
by replacing virtually all the component parts. Despite an
arbitration decision in favor of Local 1, the Board
awarded the work to employees represented by Local 3.
We find that the work involved in this dispute is compa-
rable to that involved in the prior Board case. While the
case involved a different employer, the same unions were
involved and the factual circumstances were very similar.
Local 1 argues that Elevator Constructors Local 1 is
distinguishable because the basis for invoking the
Board’s 10(k) jurisdiction in this case is a “sham” and
the Employer is bound to the arbitration award as an “al-
ter ego.” We have already rejected these contentions.
Given the close factual parallels between this case and
Elevator Constructors Local 1, we find that the factor of
prior Board decisions favors an award of the disputed
work to employees represented by Local 3. See, e.g.,
Operating Engineers Local 150 (R&D Thiel), 345 NLRB
at 1141 (2005), citing Laborers Local 910 (Brockway
Glass), 226 NLRB 142, 144–145 (1976).
5. Joint Board awards
As previously discussed, an arbitration panel convened
pursuant to the New York Plan for resolution of interun-
ion disputes awarded the work in dispute to employees
represented by Local 1. The written award indicates that
the panel relied on prior New York Green Book deci-
sions. There is no evidence that the panel considered any
of the factors that the Board considers in making an
award in a 10(k) proceeding. Cf. Laborers Local 81
(Kenny Construction Co.), 338 NLRB 977, 979 (2003)
(joint board award does not favor either party absent evi-
dence that it considered 10(k) factors). Furthermore, the
Employer is not signatory to the New York Plan and did
not participate in the Plan proceedings. “The Board does
not give dispositive weight to arbitrator’s decisions
where the employer is not a party to the proceeding and
did not agree to be bound to its results.” Elevator Con-
structors Local 2 (Kone, Inc.), 349 NLRB 1207, 1211
(2007). We therefore find that the joint board arbitration
award does not favor awarding the work in dispute to
either group of employees.
6. Relative skills
The record shows that the employees represented by
both unions are qualified to perform the disputed work.
Therefore, this factor does not favor awarding the dis-
puted work to employees represented by either Union.
7. Economy and efficiency of operations
The Employer presented testimony that it is more effi-
cient and economical to have Local 3-represented em-
ployees perform the work in dispute. The Employer has
an experienced crew of employees who have performed
similar modernization work for the Employer and are
familiar with the Employer’s practices, procedures, and
policies.
ELECTRICAL WORKERS LOCAL 3 (UNITEC ELEVATOR CO.) 1051
The Employer’s modernization manager, Scotko, testi-
fied that these employees also perform ancillary func-
tions that would have to be contracted out if the disputed
work were reassigned. He testified that the Employer’s
own Local 3-represented employees do some carpentry,
wiring, and electrical work related to the project which, in his
experience, Local 1-represented employees do not perform.
The Employer also employs a Local 3 member as its truck-
driver, avoiding the need to hire anyone to make deliveries or
help unload the truck.
The Employer also contends that, if the work is as-
signed to Local 1, the time and money invested since
April in having Local 3-represented employees develop
the prototype will be lost. Furthermore, the contract re-
quires the Employer to perform enhanced maintenance in
addition to the modernization. Local 1 is not claiming
the maintenance work. The Employer’s modernization
manager testified that the Employer’s maintenance me-
chanics work together with the modernization teams. If
additional help is required by a modernization team, a
maintenance mechanic can be assigned to assist in per-
forming modernization work. Having that flexibility to
assign employees makes it more efficient to have Local
3-represented employees perform both the maintenance
and the modernization.
We find that this factor favors awarding the disputed
work to the Employer’s employees represented by Local 3.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Local 3, International
Brotherhood of Electrical Workers, AFL–CIO, are enti-
tled to continue performing the work in dispute. We
reach this conclusion relying on the factors of certifica-
tion and collective-bargaining agreements, current as-
signment, employer current assignment, preference, and
past practice, prior Board case, and economy and effi-
ciency of operations. In making this determination, we
award the work to employees represented by Local 3, not
to that labor organization or to its members. The deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Unitec Elevator Company represented
by Local 3, International Brotherhood of Electrical
Workers, AFL–CIO, are entitled to perform the elevator
modernization work at Lefrak City, New York City, New
York.